BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   June 8, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          1005 (Jackson) - As Amended June 6, 2016


          SENATE VOTE:  35-2


          SUBJECT:  Marriage


          KEY ISSUE:  should california statutes be updated to replace  
          REFERENCES to "husband" and "wife" with the gender-neutral term  
          "spouse"?

                                      SYNOPSIS


          This technical, non-substantive bill replaces references to  
          "husband" or "wife" with references to "spouse" throughout the  
          codes.  This bill is a follow-up to 2014's SB 1306 (Leno), Chap.  
          82, Stats. 2014, which clarified that the statutory language in  
          the Family Code enacted by Proposition 22 of 2000 (which  
          provides that "only marriage between a man and a woman is valid  
          or recognized in California") no longer has, after the  
          California Supreme Court's decision in In re Marriage Cases  
          (2008) 43 Cal.4th 757, any legal effect, and therefore defined  
          marriage in a gender-neutral manner.  That bill represented the  
          culmination of a decades-long effort to allow same-sex couples  
          to marry in California.  









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          In 1999, California created its first domestic partnership  
          statute for same-sex couples (AB 26 (Migden), Chap. 588, Stats.  
          1999), following similar actions by local jurisdictions  
          beginning in the 1980's.  The drive for marriage equality was  
          advanced substantially in 2005 when legislation to permit  
          same-sex couples to marry was introduced.  AB 849 (Leno) became  
          the first marriage equality bill in the nation to pass a state  
          legislature, but it was vetoed by then-Governor Schwarzenegger.   
          Three years later, in 2008, the California Supreme Court, in its  
          landmark In re Marriage Cases ruling, struck down as  
          unconstitutional statutes that limited marriage to a man and a  
          woman, and same sex-couple were able to marry.  That lasted  
          until November of 2008, when Proposition 8, which defined  
          marriage in the state constitution as the union of a man and a  
          woman, was approved by the voters.  Proposition 8 was  
          subsequently found unconstitutional by a federal district court  
          and that decision remained the law in California after the U.S.  
          Supreme Court found that appellants lacked standing to appeal.   
          (Perry v. Schwarzenegger (2010) 740 F. Supp. 2d 921 (N.D. Cal.);  
          Hollingsworth v. Perry (2013) 133 S. Ct. 2652.)  Just last year,  
          the U.S. Supreme Court, in the landmark Obergefell v. Hodges  
          case, determined that preventing same-sex couples from  
          exercising their fundamental right to marry violated the due  
          process and equal protection clauses of the 14th Amendment to  
          the U.S. Constitution.  (Obergefell v. Hodges (2015) 135 S. Ct.  
          2584.)  Thus, same-sex couples may now marry anywhere in the  
          United States.


          This bill is sponsored by Equality California and supported by,  
          among others, the American Civil Liberties Union of California  
          and National Center for Lesbian Rights, who state that it is  
          important for statutes to accurately reflect the law to avoid  
          confusion for the courts and unrepresented litigants.  It is  
          opposed by the California Catholic Conference, who argues by  
          replacing "the meaningful terms 'husband' and 'wife' with the  
          generic word 'spouse,' [the bill] depletes the critical role  
          gender plays in the family structure" and could infringe on  








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          individuals' "religious liberty rights."
          SUMMARY:  Replaces "husband" and "wife" with "spouse."   
          Specifically, this bill:  


          1)Replaces "husband" and "wife" with "spouse."


          2)Clarifies that "spouse" includes registered domestic partners  
            throughout the codes.


          EXISTING LAW:  


          1)Provides that marriage is a personal relation arising out of a  
            civil contract between two persons.  (Family Code Section 300.  
             Unless stated otherwise, all further statutory provisions are  
            to that code.)  


          2)Provides that registered domestic partners have the same  
            rights, protections, and benefits and are subject to the same  
            responsibilities, obligations, and duties under law, whether  
            they derive from statutes, administrative regulations, court  
            rules, government policies, common law, or any other  
            provisions or sources of law, as are granted to and imposed  
            upon spouses.  Also applies to former domestic partners and  
            surviving domestic partners.  (Section 297.5.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  This bill continues a decades-long effort to allow  
          same-sex couples to marry in California.  While California and  
          the entire United States now recognize the rights of same-sex  
          couples to marry, the codes have not fully caught up to the law,  








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          and this bill seeks to move that process forward by replacing  
          the terms "husband" and "wife" with the gender neutral term  
          "spouse" throughout the codes.  In support of the bill, the  
          author writes:


               There are many provisions in statutory law, particularly in  
               California's Probate Code, with important applications for  
               married couples and the individual rights of a spouse.   
               Language that does not accurately reflect marriage equality  
               can create confusion for courts, litigants, and applicants  
               for state programs about what rights are available to  
               same-sex spouses, particularly for self-represented  
               individuals. 


          The History of Marriage Equality in California:  The origins of  
          this bill - and the civil rights struggle it represents - go  
          back decades.  Beginning in the mid-1980's, local jurisdictions  
          began to recognize same-sex couples by establishing a legal  
          status called "domestic partnership," which gave same-sex  
          couples not only limited protections for themselves and their  
          children, but also, for the first time, government recognition  
          as family units.  By 2000, 18 California local governments had  
          established domestic partnership registries.  California took  
          notice of this emerging movement to recognize the rights of  
          same-sex couples.  In 1999, the Legislature enacted AB 26  
          (Migden), Chap. 588, Stats. 1999, to create the state's first  
          domestic partnership statute.  The most comprehensive set of  
          rights and responsibilities for registered domestic partners was  
          enacted in 2003 by AB 205 (Goldberg), Chap. 421, which became  
          fully operative on January 1, 2005 and still applies today.  


          In 2000, California voters passed Proposition 22 to prohibit  
          California from recognizing same-sex marriages.  The measure  
          passed with 61 percent of the vote and became codified as  
          Section 308.5 of the Family Code.   









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          In February 2004, the City and County of San Francisco began  
          issuing marriage licenses to same-sex couples.  However, after  
          4,037 same-sex couples had married, the California Supreme Court  
          ordered San Francisco to stop issuing marriage licenses to  
          same-sex couples and invalidated the marriages that had already  
          occurred.  (Lockyer v. City and County of San Francicso (2004)  
          33 Cal.4th 1055.)  


          Senator Leno's first legislative attempt to permit same-sex  
          couples to marry was AB 19 in 2005, which passed this Committee  
          that year but failed passage on the Assembly Floor.  Senator  
          Leno then revived the bill later in that year as AB 849, which  
          became the first such bill in the nation to be passed by both  
          houses of a legislature.  However, then-Governor Schwarzenegger  
          vetoed the bill.  Senator Leno nevertheless reintroduced the  
          measure in 2007 as AB 43, but then-Governor Schwarzenegger once  
          again vetoed the bill, stating it was up to the Supreme Court to  
          decide if the state's ban on same-sex marriage was  
          constitutional, which happened the very next year.


          On May 15, 2008, the California Supreme Court, in a 4-3  
          decision, struck down as unconstitutional the California  
          statutes limiting marriage to a man and a woman.  The majority  
          opinion concluded that "the California Constitution properly  
          must be interpreted to guarantee this basic civil right to all  
          Californians, whether gay or heterosexual, and to same-sex  
          couples as well as to opposite-sex couples."  (In re Marriage  
          Cases (2008) 43 Cal.4th 757, 782 (footnote omitted).)  The Court  
          found that "[a]lthough our state Constitution does not contain  
          any explicit reference to a 'right to marry,' past California  
          cases establish beyond question that the right to marry is a  
          fundamental right whose protection is guaranteed to all persons  
          by the California Constitution."  (Id. at 809.)  The core  
          substantive rights embodied in the right to marry "include, most  
          fundamentally, the opportunity of an individual to establish -  
          with the person with whom the individual has chosen to share his  








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          or her life - an officially recognized and protected family  
          possessing mutual rights and responsibilities and entitled to  
          the same respect and dignity accorded a union traditionally  
          designated as marriage."  (Id. at 781.)  Accordingly, the Court  
          concluded that "in light of the fundamental nature of the  
          substantive rights embodied in the right to marry - and their  
          central importance to an individual's opportunity to live a  
          happy, meaningful, and satisfying life as a full member of  
          society - the California Constitution properly must be  
          interpreted to guarantee this basic civil right to all  
          individuals and couples, without regard to their sexual  
          orientation."  (Id. at 820, emphasis added.)  Approximately  
          18,000 same-sex couples married in California after the  
          effective date of the In re Marriage Cases decision.


          On November 4, 2008, Proposition 8, which added to the  
          California Constitution a provision stating that in California  
          marriage could only be between one man and one woman, narrowly  
          passed on a vote of 52-48 percent and same-sex marriages were  
          once again prohibited in California.  Immediately after the  
          passage of Proposition 8, its opponents filed a petition  
          directly with the California Supreme Court seeking to invalidate  
          the measure on the grounds that it was not permissibly enacted.   
          The Supreme Court, in Strauss v. Horton (2009) 46 Cal.4th 364,  
          upheld Proposition 8 in a 6-1 decision, but held, unanimously,  
          that the same-sex marriages performed in California before the  
          passage of Proposition 8 were valid.  While upholding  
          Proposition 8, the Court reiterated its key holding in In re  
          Marriage Cases, namely that in all respects, other than the word  
          marriage, "same-sex couples retain the same substantive  
          protections embodied in the state constitutional rights of  
          privacy and due process as those accorded to opposite-sex  
          couples and the same broad protections under the state equal  
          protection clause that are set forth in the majority opinion in  
          the In re Marriage Cases, including the general principle that  
          sexual orientation constitutes a suspect classification and that  
          statutes according differential treatment on the basis of sexual  
          orientation are constitutionally permissible only if they  








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          satisfy the strict scrutiny standard of review."  (Id. at 412.)



          In 2009, opponents of Proposition 8 filed an action in federal  
          court in the Northern District of California challenging  
          Proposition 8 as violating both the due process clause and equal  
          protection clause of the 14th Amendment to the federal  
          constitution and seeking injunctive relief enjoining application  
          of the proposition.  After a lengthy trial, the district court  
          concluded that Proposition 8 was unconstitutional, violating  
          both the federal due process and the equal protection clauses.   
          (Perry v. Schwarzenegger (2010) 704 F. Supp. 2d 921, 1003 (N.D.  
          Cal.).)  The Ninth Circuit agreed on narrower grounds, ruling  
          that Proposition 8 violated the equal protection clause by  
          targeting a minority group and withdrawing a right that the  
          group already possessed (the right to marriage under the In re  
          Marriage Cases) without a legitimate reason for doing so.   
          (Perry v. Brown (9th Cir. 2012) 671 F.3d 1052.)  The United  
          States Supreme Court, on a 5-4 decision, dismissed the appeal  
          for lack of standing.  The Supreme Court found that the  
          proponents of the initiative lacked standing to appeal.   
          (Hollingsworth v. Perry (2013) 133 S. Ct. 2652.)  As a result,  
          the district court decision became the law of California.


          As a result, on June 28, 2013, California began allowing  
          same-sex couples to marry and began recognizing marriages  
          between same sex couples from other states.  Two years ago, the  
          Legislature, conformed existing statutes to superseding state  
          and federal case law, specifically provided that marriage is the  
          gender-neutral union of two individuals in SB 1306 (Leno), Chap.  
          82, Stats. 2014.


          Finally, the U.S. Supreme Court, in the landmark Obergefell v.  
          Hodges case, determined that preventing same-sex couples from  
          exercising their fundamental right to marry violated the due  
          process and equal protection clauses of the 14th Amendment.   








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          (Obergefell v. Hodges (2015) 135 S. Ct. 2584.)  Thus, same-sex  
          couples today may marry across the United States.


          This Bill Seeks to Update the Codes to Reflect Current Law:  For  
          unrepresented individuals, understanding the law and complex  
          legal processes is often very difficult and can be nearly  
          impossible when statutes do not reflect the actual law.   
          Updating the statutes will help ensure that someone reading the  
          California codes will have an accurate understanding of the law.


          California's courts have long interpreted the code to apply  
          neutrally regarding gender in an effort to accommodate the  
          evolution of the nuclear family.  In order to best protect  
          parties and their children, courts recognize that in many  
          families traditional gender-stereotypes cease to exist: more  
          mothers are breadwinners, more fathers are primary caretakers,  
          and many same-sex couples are raising children.  To that end, in  
          2013 the Legislature updated statutory terms within the Uniform  
          Parentage Act to conform with case law and other statutory  
          provisions, including changing "presumed father" to "presumed  
          parent," and replacing "father" and "mother" with "parent."   
          (See AB 1403 (Committee on Judiciary), Chap. 510, Stats. 2013.)   
          In addition, the Legislature enacted SB 1306 (Leno), Chap. 82,  
          Stats. 2014, which deleted references to "husband" or "wife" in  
          the Family Code and instead referred to a "spouse."  Similarly,  
          this bill would update the remaining codes to accurately reflect  
          California law.  


          The American Civil Liberties Union of California, in support,  
          further notes:  "Language [in the codes] that does not  
          accurately reflect the law can create confusion for courts,  
          litigants, and applicants for state programs about what rights  
          are available to same-sex spouses, particularly self-represented  
          individuals."










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          Domestic Partners are Included Under "Spouses."  While this bill  
          only replaces "husband" and "wife" with the word "spouse,"  
          spouse also includes domestic partners.  California's domestic  
          partnership laws provide that registered domestic partners have  
          the "same rights, protections, and benefits, and shall be  
          subject to the same responsibilities, obligations, and duties  
          under law, whether they derive from statutes, administrative  
          regulations, court rules, government policies, common law, or  
          any other provisions or sources of law, as are granted to and  
          imposed upon spouses."  (Section 297.5.)  Similarly, former  
          registered domestic partners and surviving registered domestic  
          partners have the same rights as former spouses and surviving  
          spouses.  (Id.)  Thus, whenever the term "spouse" is used in the  
          codes it also includes registered domestic partners.


          To make that more clear to non-lawyers, this bill adds  
          clarifying definitional language to each code that includes the  
          term "spouse" to refer to Section 297.5 and make clear that  
          "spouse" includes a registered domestic partner.


          ARGUMENTS IN SUPPORT:  In support of this bill, Attorney General  
          Kamala Harris writes that "much of statute continues to reflect  
          California's unfortunate history of discrimination.  Gendered  
          references to "husband" and "wife" throughout state law do not  
          adequately reflect the reality of modern marriage rights, and  
          these references perpetuate a painful legacy as California  
          continues to advance in its protection of LGBT liberties.  By  
          replacing outdated language in the codes with gender neutral  
          nomenclature, Senate Bill 1005 both corrects legal inaccuracies  
          and aids significantly to the continued restoration of dignity  
          for same-sex couples in the state."


          ARGUMENTS IN OPPOSITION:  In opposition to the bill, the  
          California Catholic Conference writes:










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            [A]s it is was historically written into our state  
            constitution, the words "husband" and "wife" are not only  
            adequate, but necessarily stated, in order to convey and  
            include the requirement for both genders to be present in law.  
             Similarly, our Church not only recognizes, but upholds, what  
            has been reality for thousands of years: that marriage unites  
            a man and woman in a unique relationship that provides an  
            ideal environment for childrearing.  That definition  
            recognizes a child's innate right to know and be nurtured by  
            her/his parents and the fundamental importance of that  
            relationship to the continued stability and flourishing of  
            society.  Replacing the meaningful terms "husband" and "wife"  
            with the generic word "spouse," depletes the critical role  
            gender plays in the family structure.


            The Catholic Church, along with other faith traditions,  
            teaches that the nature of marriage and the family cannot be  
            redefined by society, as God is the author of marriage and its  
            corresponding gift of creating human life.  The legal  
            recognition of marriage is not only about personal commitment  
            but also about the social commitment that husband and wife  
            make to the well-being of their children.  It is for this  
            reason that it is important for government to give unique  
            status to marriage between one man and one woman both in law  
            and in public policy.


            Moreover, by making such unneeded, amendments to the laws of  
            California, unintended consequences are undoubtedly likely to  
            arise.  Not the least of these unintended consequences could  
            be the infringement of conscience and religious liberty  
            rights.  People of good faith differ on this issue often for  
            reasons of religious conviction.  Coercion imposed by  
            legislative action of this nature does not resolve the  
            disagreement.  It can make our culture more confrontational,  
            more contentious, and less civil.










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          REGISTERED SUPPORT / OPPOSITION:




          Support


          Equality California (sponsor)
          American Civil Liberties Union of California
          American Federation of State, County and Municipal Employees  
          (AFSCME), AFL-CIO
          Attorney General Kamala Harris
          California Teachers Association
          National Association of Social Workers, California Chapter
          National Center for Lesbian Rights
          Secular Coalition of California


          Opposition


          California Catholic Conference




          Analysis Prepared by:Leora Gershenzon / JUD. / (916)  
          319-2334

















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